Charges of statutory rape are inapplicable, since no such law or convention applied to any of Joseph's wives

Charges of statutory rape are inapplicable, since no such law or convention applied to any of Joseph's wives. Joseph's percentage of wives in their teen years was less than the series percentage of teen wives in Kirtland, Nauvoo, or the 1850 U.S. census, even among men his own age. If anything, Joseph married a greater percentage of older women, which suggests that motives other than sexual attraction drove these matches.

Large spousal age differences were not uncommon before and after Nauvoo, among members and non-members

Large spousal age differences were not uncommon before and after Nauvoo, among members and non-members. To attack Joseph Smith on the age of his wives is to misunderstand the historic time in which he lived. Modern readers have been unfairly treated by authors who, misled by or preying upon presentism, either did not know, or declined to mention, that the practice was routine in Joseph’s time.

Critics of Joseph Smith are sometimes filled with righteous indignation when they raise the issue of his wives' ages. Never one to be over-burdened by historical details or interpretive nuance, vocal atheist Christopher Hitchens savages Joseph as a "serial practitioner of statutory rape." [1] Modern members and investigators, with more sincerity than Hitchens, have also been troubled (and even a little shocked) to learn, for example, that Joseph married one woman a few months shy of her fifteenth birthday.

Such surprise is a natural first reaction, though an author such as Hitchens—who purports to be providing reasoned analysis—might be expected to bring something besides knee-jerk slogans to the discussion. Sadly, Hitchens' remarks on religion generally provide little but bombast, so Latter-day Saints need not feel singled out. Hitchens does provide us, however, with a textbook example of presentism.

What is Presentism?

Imagine a school-child who asks why French knights didn't resist the English during the Battle of Agincourt (in 1415) using Sherman battle tanks. We might gently reply that there were no such tanks available. The child, a precocious sort, retorts that the French generals must have been incompetent, because everyone knows that tanks are necessary. The child has fallen into the trap of presentism—he has presumed that situations and circumstances in the past are always the same as the present. Clearly, there were no Sherman tanks available in 1415; we cannot in fairness criticize the French for not using something which was unavailable and unimagined.

Spotting such anachronistic examples of presentism is relatively simple. The more difficult problems involve issues of culture, behavior, and attitude. For example, it seems perfectly obvious to most twenty-first century North Americans that discrimination on the basis of race is wrong. We might judge a modern, racist politician quite harshly. We risk presentism, however, if we presume that all past politicians and citizens should have recognized racism, and fought it. In fact, for the vast majority of history, racism has almost always been present. Virtually all historical figures are, by modern standards, racists. To identify George Washington or Thomas Jefferson as racists, and to judge them as moral failures, is to be guilty of presentism.

A caution against presentism is not to claim that no moral judgments are possible about historical events, or that it does not matter whether we are racists or not. Washington and Jefferson were born into a culture where society, law, and practice had institutionalized racism. For them even to perceive racism as a problem would have required that they lift themselves out of their historical time and place. Like fish surrounded by water, racism was so prevalent and pervasive that to even imagine a world without it would have been extraordinarily difficult. We will not properly understand Washington and Jefferson, and their choices, if we simply condemn them for violating modern standards of which no one in their era was aware.

Hitchens' attack on Joseph Smith for "statutory rape" is a textbook example of presentist history

Hitchens' attack on Joseph Smith for "statutory rape" is a textbook example of presentist history. "Rape," of course, is a crime in which the victim is forced into sexual behavior against her (or his) will. Such behavior has been widely condemned in ancient and modern societies. Like murder or theft, it arguably violates the moral conscience of any normal individual. It was certainly a crime in Joseph Smith's day, and if Joseph was guilty of forced sexual intercourse, it would be appropriate to condemn him.

"Statutory rape," however, is a completely different matter. Statutory rape is sexual intercourse with a victim that is deemed too young to provide legal consent--it is rape under the "statute," or criminal laws of the nation. Thus, a twenty-year-old woman who chooses to have sex has not been raped. Our society has concluded, however, that a ten-year-old child does not have the physical, sexual, or emotional maturity to truly understand the decision to become sexually active. Even if a ten-year-old agrees to sexual intercourse with a twenty-year-old male, the male is guilty of "statutory rape." The child's consent does not excuse the adult's behavior, because the adult should have known that sex with a minor child is illegal.

Even in the modern United States, statutory rape laws vary by state. A twenty-year-old who has consensual sex with a sixteen-year-old in Alabama would have nothing to fear; moving to California would make him guilty of statutory rape even if his partner was seventeen.

By analogy, Joseph Smith likely owned a firearm for which he did not have a license--this is hardly surprising, since no law required guns to be registered on the frontier in 1840. It would be ridiculous for Hitchens to complain that Joseph "carried an unregistered firearm." While it is certainly true that Joseph's gun was unregistered, this tells us very little about whether Joseph was a good or bad man. The key question, then, is not "Would Joseph Smith's actions be illegal today?" Only a bigot would condemn someone for violating a law that had not been made.

Rather, the question should be, "Did Joseph violate the laws of the society in which he lived?" If Joseph did not break the law, then we might go on to ask, "Did his behavior, despite not being illegal, violate the common norms of conscience or humanity?" For example, even if murder was not illegal in Illinois, if Joseph repeatedly murdered, we might well question his morality.

Four Key Questions

We must, then, address four questions:

What were the ages of Joseph's wives?

Did Joseph have sexual intercourse with these women? If not, then the issue of statutory rape is moot. If so, we have not proven statutory rape, but can move on to the next question.

What were the statutory rape laws of the time, and did Joseph violate them?

If Joseph was not guilty of statutory rape, did he nevertheless violate common norms of conscience or society?

1. The Age of Joseph's Wives

Even LDS authors are not immune from presentist fallacies: Todd Compton, convinced that plural marriage was a tragic mistake, "strongly disapprove[s] of polygamous marriages involving teenage women." [2] This would include, presumably, those marriages which Joseph insisted were commanded by God. Compton notes, with some disapproval, that a third of Joseph's wives were under twenty years of age. The modern reader may be shocked. We must beware, however, of presentism—is it that unusual that a third of Joseph's wives would have been teenagers?

When we study others in Joseph's environment, we find that it was not. A sample of 201 Nauvoo-era civil marriages found that 33.3% were under twenty, with one bride as young as twelve. [3] Another sample of 127 Kirtland marriages found that nearly half (49.6%) were under twenty. [4] And, a computer-aided study of LDS marriages found that from 1835–1845, 42.3% of women were married before age twenty. [5] The only surprising thing about Joseph's one third is that more of his marriage partners were not younger.

Furthermore, this pattern does not seem to be confined to the Mormons (see Chart 12 1). A 1% sample from the 1850 U.S. census found 989 men and 962 who had been married in the last year. Teens made up 36.0% of married women, and only 2.3% of men; the average age of marriage was 22.5 for women and 27.8 for men. [6] Even when the men in Joseph's age range (34–38 years) in the U.S. Census are extracted, Joseph still has a lower percentage of younger wives and more older wives than non-members half a decade later. [7]

Chart 12-1

I suspect that Compton goes out of his way to inflate the number of young wives, since he lumps everyone between "14 to 20 years old" together. [8] It is not clear why this age range should be chosen—women eighteen or older are adults even by modern standards.

A more useful breakdown by age is found in Table 12-1. Rather than lumping all wives younger than twenty-one together (a third of all the wives), our analysis shows that only a fifth of the wives would be under eighteen. These are the only women at risk of statutory rape issues even in the modern era.

2. Were there marital relations?

As shown elsewhere, the data for sexual relations in Joseph's plural marriages are quite scant (see Chapter 10—not online). For the purposes of evaluating "statutory rape" charges, only a few relationships are relevant.

The most prominent is, of course, Helen Mar Kimball, who was the prophet's youngest wife, married three months prior to her 15th birthday. [10] As we have seen, Todd Compton's treatment is somewhat confused, but he clarifies his stance and writes that "[a]ll the evidence points to this marriage as a primarily dynastic marriage." [11] Other historians have also concluded that Helen's marriage to Joseph was unconsummated. [12]

Nancy M. Winchester was married at age fourteen or fifteen, but we know nothing else of her relationship with Joseph. [13]

Flora Ann Woodruff was also sixteen at her marriage, and "[a]n important motivation" seems to have been "the creation of a bond between" Flora's family and Joseph. [14] We know nothing of the presence or absence of marital intimacy.

Fanny Alger would have been sixteen if Compton's date for the marriage is accepted. Given that I favor a later date for her marriage, this would make her eighteen. In either case, we have already seen how little reliable information is available for this marriage (see Chapter 4—not online), though on balance it was probably consummated.

Sarah Ann Whitney, Lucy Walker, and Sarah Lawrence were each seventeen at the time of their marriage. Here at last we have reliable evidence of intimacy, since Lucy Walker suggested that the Lawrence sisters had consummated their marriage with Joseph. Intimacy in Joseph's marriages may have been more rare than many have assumed—Walker's testimony suggested marital relations with the Partridge and Lawrence sisters, but said nothing about intimacy in her own marriage (see Chapter 10—not online).

Sarah Ann Whitney's marriage had heavy dynastic overtones, binding Joseph to faithful Bishop Orson F. Whitney. We know nothing of a sexual dimension, though Compton presumes that one is implied by references to the couple's "posterity" and "rights" of marriage in the sealing ceremony. [15] This is certainly plausible, though the doctrine of adoption and Joseph's possible desire to establish a pattern for all marriages/sealings might caution us against assuming too much.

Of Joseph's seven under-eighteen wives, then, only one (Lawrence) has even second-hand evidence of intimacy. Fanny Alger has third-hand hostile accounts of intimacy, and we know nothing about most of the others. Lucy Walker and Helen Mar Kimball seem unlikely candidates for consummation.

The evidence simply does not support Christopher Hitchens' wild claim, since there is scant evidence for sexuality in the majority of Joseph's marriages. Many presume that Joseph practiced polygamy to satisfy sexual longings, and with a leer suggest that of course Joseph would have consummated these relationships, since that was the whole point. Such reasoning is circular, and condemns Joseph's motives and actions before the evidence is heard.

Even were we to conclude that Joseph consummated each of his marriages—a claim nowhere sustained by the evidence—this would not prove that he acted improperly, or was guilty of "statutory rape." This requires an examination into the legal climate of his era.

3. Statutory Rape and the Law

The very concept of a fifteen- or seventeen-year-old suffering statutory rape in the 1840s is flagrant presentism. The age of consent under English common law was ten. American law did not raise the age of consent until the late nineteenth century, and in Joseph Smith's day only a few states had raised it to twelve. Delaware, meanwhile, lowered the age of consent to seven. [16]

In our time, legal minors can often be married before the age of consent with parental approval. Joseph certainly sought and received the approval of parents or male guardians for his marriages to Fanny Alger, Sarah Ann Whitney, Lucy Walker, and Helen Kimball. [17] His habit of approaching male relatives on this issue might suggest that permission was gained for other marriages about which we know less.

Clearly, then, Hitchens' attack is hopelessly presentist. None of Joseph's brides was near ten or twelve. And even if his wives' ages had presented legal risks, he often had parental sanction for the match.

4. Did Joseph violate societal norms?

There can be no doubt that the practice of polygamy was deeply offensive to monogamous, Victorian America. As everything from the Nauvoo Expositor to the latest anti-Mormon tract shows, the Saints were continually attacked for their plural marriages.

If we set aside the issue of plurality, however, the only issue which remains is whether it would have been considered bizarre, improper, or scandalous for a man in his mid-thirties to marry a woman in her mid- to late-teens. Clearly, Joseph's marriage to teen-age women was entirely normal for Mormons of his era. The sole remaining question is, were all these teen-age women marrying men their own age, or was marriage to older husbands also considered proper?

To my knowledge, the issue of age disparity was not a charge raised by critics in Joseph's day. It is difficult to prove a negative, but the absence of much comment on this point is probably best explained by the fact that plural marriage was scandalous, but marriages with teenage women were, if not the norm, at least not uncommon enough to occasion comment. For example, to disguise the practice of plural marriage, Joseph had eighteen-year-old Sarah Whitney pretend to marry Joseph Kingsbury, who was days away from thirty-one. [18] If this age gap would have occasioned comment, Joseph Smith would not have used Kingsbury as a decoy.

One hundred and eighty Nauvoo-era civil marriages have husbands and wives with known ages and marriage dates. [19] Chart 12 2 demonstrates that these marriages follow the general pattern of wives being younger than husbands.

Chart 12-2

When the age of husband is plotted against the age of each wife, it becomes clear that almost all brides younger than twenty married men between five and twenty years older (see Chart 12-3).

Chart 12-3

This same pattern appears in 879 marriages from the 1850 U.S. Census (see Chart 12 4). Non-Mormon age differences easily exceeded Joseph's except for age fourteen. We should not make too much of this, since the sample size is very small (one or two cases for Joseph; three for the census) and dynastic motives likely played a large role in Joseph's choice, as discussed above.

Chart 12-4

In short, Mormon civil marriage patterns likely mimicked those of their gentile neighbors. Neither Mormons or their critics would have found broad age differences to be an impediment to conjugal marriage. In fact, the age difference between wives and their husbands was greatest in the teen years, and decreased steadily until around Joseph's age, between 30–40 years, when the spread between spouses' ages was narrowest (note the bright pink bars in Chart 12-5).

Chart 12-5

As Thomas Hine, a non-LDS scholar of adolescence noted:

Until the twentieth century, adult expectations of young people were determined not by age but by size. If a fourteen-year-old looked big and strong enough to do a man's work on a farm or in a factory or mine, most people viewed him as a man. And if a sixteen-year-old was slower to develop and couldn't perform as a man, he wasn't one. For, young women, the issue was much the same. To be marriageable was the same as being read for motherhood, which was determined by physical development, not age....

The important thing, though, was that the maturity of each young person was judged individually. [20]

Why the modern world is different

Why did pre-modern peoples see nothing wrong with teen marriages? Part of the explanation likely lies in the fact that life-expectancy was greatly reduced compared to our time (see Table 12 2).

The modern era has also seen the "extension" of childhood, as many more years are spent in schooling and preparation for adult work. In the 1840s, these issues simply weren't in play for women—men needed to be able to provide for their future family, and often had the duties of apprenticeship which prevented early marriage. Virtually everything a woman needed to know about housekeeping and childrearing, however, was taught in the home. It is not surprising, then, that parents in the 1840s considered their teens capable of functioning as married adults, while parents in 2007 know that marriages for young teens will usually founder on issues of immaturity, under-employment, and lack of education.

↑Susan Easton Black, "Marriages in the Nauvoo Region 1839-1845," on-line database, using sources: Lyndon W. Cook, Civil Marriages in Nauvoo and some outlying areas (1839-1845) (Liberty Publishing Co., 1980); with additional data from Times and Seasons, The Wasp, Nauvoo Neighbor, and "A Record of Marriages in the City of Nauvoo," located at the Historical Department of The Church of Jesus Christ of Latter-day Saints. <http://www.worldvitalrecords.com/indexinfo.aspx?ix=usa_il_nauvoo_marriages> I am indebted to David Keller, who performed the initial data extraction, and saved me hours of work by sharing his raw data files.

↑Kirtland marriage data from Milton V. Backman, Jr. with Keith Perkins and Susan Easton, "A profile of Latter-day Saints of Kirtland, Ohio and members of Zion's Camp 1830–1839 : vital statistics and sources," complied in cooperation with the Department of Church History and Doctrine, Brigham Young University, in Family History Library, Salt Lake City, Utah. The indefatigable David Keller also provided me with this data.

↑ The U.S. Census data included marriages within the last year since the census, so some marriages could have occurred prior to the wife's recorded birthday. Presumably this effect would be equally distributed throughout the year—to adjust for this, the data was convolved via a moving average. This did not materially affect the data plots; see Appendix 1 for both versions of the Nauvoo data plotted. My thanks to David Keller for discussions and help with the statistics.

↑Kingsbury was born 2 May 1812, and "married" Sarah Whitney on 29 April 1843.

↑Of 883 married individuals, there were 219 men and 201 women with exact birth and marriage dates. Of these, 180 marriages were identified in which the husband and wife's birth date was known. I matched these couples for data analysis. Since it is not clear how many of these marriages were first marriages, these data represents a conservative estimate of teen-age marriage in Nauvoo in the early 1840s. If second marriages were excluded, there would likely be an even greater percentage of teen marriages. The data is again from Susan Easton Black, "Marriages in the Nauvoo Region 1839–1845," op. cit. as originally extracted by David Keller.